On tents of the answer to show the issue made | entire materials were furnished and before by it. The case was set down for hearing the record of the lien. on bill and answer by the complainant. final hearing the judge rendered a decree that complainant was entitled to the relief prayed for in the bill, that the amount due complainant for materials and supplies furnished Duffy is a lien on the lot in question superior in dignity to the interests of defendants, or any of them, and referring the case to a master to take the testimony that may be offered by the parties, as to the amount| due complainant for materials and supplies to state an account, and also to take and state an account of the attorney's fees due the solicitor for complainant. The decree appealed from seems to be based on this construction. If this be the proper construction, then there is a conflict in the meaning of the two sentences, for the first sentence affirmatively states the lien shall be acquired as to creditors and purchasers without notice only from the time of recordation. That is to say, it specifically provides that the recorded lien shall only be prospective in its operation, whereas the last sentence makes the lien retroactive in operation. Without meaning to deny the contention of appellees that the Legislature has the power, if it chooses to exercise it, to give E. P. Axtell appealed from this decree to such an effect to a lien, it seems to us the this court. The matter before us requires the construction of subsection 2 (a) of section 2210 of the General Statutes of 1906, prescribing how liens in favor of one who in privity with the owner has furnished material for the erection and repair of buildings, etc., may be acquired as against purchasers and creditors. It reads as follows: "(a) As to Real Estate-As against purchasers and creditors of such owner without notice, such lien shall be acquired upon real estate only from the time of the record in the office of the clerk of the circuit court of the county where the real estate lies of a notice of such lien. Such notice shall contain a statement of the amount claimed, a description of the property upon which the lien is claimed, and a notice of the intention to hold a lien for the said amount, and shall be verified by the oath of the lienor or his agent. It shall be filed only after the labor has been entirely performed and the mate rials entirely furnished. "No such notice of a perfected lien shall be effectual against creditors or purchasers of the owner without notice unless it be filed within three months after the entire performance of the labor or the entire furnishing of the material." question is: Did the Legislature intend to produce this result in this case? If they did intend this result, then probably the last sentence should be taken as the expression of the legislative intent. Paragraphs 268 and 349, 1 Lewis' Sutherland Statutory Construction (2d Ed.). The intent is the vital part, the essence of the law, and the primary rule of construction is to ascertain and give effect to that intent. Paragraph 363, Id. Most certainly a construction which results in bringing two sentences of the same section into conflict should be avoided, if it can be done without doing violence to the language used and the general intent of the whole section. The entire statute is to be considered in ascertaining the intent. Paragraph 368, Id. Effect must be given to every part of the section, if it be reasonably possible to do so. Paragraph 380, Id. Each part or section of a statute should be construed in connection with every other part or section and so as to produce a harmonious whole. Paragraph 368, Id.; Curry et al. v. Lehman, 55 Fla. 847, 47 South. 18. The mere literal construction of a section of a statute ought not to prevail if it is opposed to the intention of the Legislature apparent by the statute, and, if the words are sufficiently flexible to admit of some other construction, it is to be adopted to effectuate that intention. Paragraph 376, Id. Many other rules of interpretation of statutes might be referred to illustrating the earnest purpose of the courts to decree and car It will be noticed that the first sentence of this subsection states that "such lien shall be acquired upon real estate only from the time of the record in the office of the clerk of the circuit court of the county where the real estate lies of a notice of such a lien." | ry into effect the intent of the Legislature. The last sentence of the subsection says: "No such notice of a perfected lien shall be effectual against creditors or purchasers of the owner without notice unless it be filed within three months after the entire performance of the latter, or the entire furnishing of the material." It is the contention of the appellees that the last sentence modifies the former one, and gives the materialman three months in which to record his lien, and that, if he does so, such a lien becomes effectual even against an innocent purchaser for value who bought Now, we think the last sentence of the subsection above quoted, without violence to its language, may be construed to mean that one furnishing material shall have three months after the entire furnishing of the material to record his lien, so as to secure his lien for 12 months after the record of the same (see section 2223, Gen. St. 1906) against persons who purchase the property or creditors who become such after the time of recording the lien. There is no time limit upon recording in the first sentence of the subsection, but there is an emphatic state creditors and purchasers only from the time of the record. The person furnishing materials has three months in which to record his lien. He may record it immediately or he may, at his own risk, wait until near the end of that period. That is a matter of choice with him. But we cannot conceive it to be consistent with the plain meaning of the first sentence of the subsection that he should be permitted to use his liberty of recording within three months, as a trap to catch an innocent creditor or purchaser. Thus construed, the whole section is harmonious in all its parts, and a construction is reached which is in harmony with the general and just rule that innocent purchasers without actual notice are to be protected, unless they have constructive notice; for if proper constructive notice is given them, and they do not avail themselves of it, they have no one to blame but themselves. The appellant, Axtell, acquired the property by purchase for a valuable consideration, after the completion of the buildings on the lot in question, without actual or constructive notice of the rights of the appellees; and that he did not have constructive notice is the fault only of the appellees. We think the decree appealed from erroneous in giving the appellees superior rights to those of the appellant, and it is therefore ordered that the decree be reversed as to said appellant. TAYLOR and PARKHILL, JJ., concur. WHITFIELD, C. J., and SHACKLEFORD and COCKRELL, JJ., concur in the opinion. (59 Fla. 121) ATLANTIC COAST LINE R. CO. et al. V. McCORMICK et al. 4. NEGLIGENCE (§ 101*)-INJURIES-CONTRIBUTORY NEGLIGENCE STATUTORY PROVISIONS. liabilities of railroad companies in certain cases The provision of the statute defining the that "if the complainant and the agents of the company are both at fault, the former may recover, but the damages shall be diminished or amount of default attributable to him," is apincreased by the jury in proportion to the plicable only when the injury is done "by the running of locomotives or cars, or other machinery of such company," or "done by any per son in the employ and service of such company.' [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 85, 163-167; Dec. Dig. § 101.*] 5. NEGLIGENCE (§ 119*)-CONTRIBUTORY NEGLIGENCE-PLEADING AND PROOF. to an action in tort, it should be pleaded and Where contributory negligence is a defense proven by the defendant, unless it appears from the allegations or proofs of the plaintiff. [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 200-216; Dec. Dig. & 119.*] 6. NEGLIGENCE (§ 136*)-CONTRIBUTORY NEGLIGENCE QUESTION OF LAW AND FACT. Whether contributory negligence appears by direct testimony, or by fair inference from the evidence of the plaintiff, it is a question tions from the court, where a conclusion of confor the jury to determine under proper instructributory negligence does not indisputably arise from the evidence offered by the plaintiff so as to become a question of law. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 333-336; Dec. Dig. § 136.1 7. TRIAL ( 192*)-INSTRUCTIONS-ASSUMING FACTS. While it is error to assume in charges facts that are disputed or not conceded, it is not error to assume the existence of a fact shown by uncontroverted testimony. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 432-434; Dec. Dig. § 192.*] Error to Circuit Court, Suwannee County; B. H. Palmer, Judge. Action by Connie O. McCormick and husband against the Atlantic Coast Line Railroad Company and others. Judgment for (Supreme Court of Florida, Division A. June plaintiffs, and defendants bring error. Re 20, 1910.) (Syllabus by the Court.) 1. TRIAL ( 156*)-DEMURRER TO EVIDENCE. A demurrer to evidence admits the truth of the testimony as stated in the demurrer and also such conclusions of fact as may be fairly drawn from the testimony. Forced or violent inferences from the testimony are not admitted by the demurrer; but the testimony is to be taken most strongly against the demurrant. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 354-356; Dec. Dig. § 156.*] 2. TRIAL (§ 156*)-DEMURRER TO EVIDENCE. In passing upon a demurrer to evidence, only the evidence as stated in the demurrer can be considered. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 354-356; Dec. Dig. § 156.*] 8. TRIAL (§ 156*)-REVIEW-DEMURRER TO EV versed and remanded. Doggett & Smith, J. B. Johnson, Rees & Rees, and Carter & McCollum, for plaintiffs in error. Hardee & Smith, for defendants in error. WHITFIELD, C. J. This writ of error is to a judgment recovered by the defendants in error against the plaintiffs in error for injuries received August 15, 1908, by the wife by stepping into a hole in the floor of the waiting room of the passenger depot used by the several defendant railroad companies. The negligence alleged is that the railroad companies "wrongfully and negligently suffered the said waiting room to be and remain in bad and unsafe repair and condition, in this, to wit: That a portion of the flooring in said room of said passenger depot in which passengers and their friends were required to await the arrival and departure of trains running over the defendants' line of road, that is to say, that said waiting room was the only room provided by the defend- | at once and went into the depot waiting room ants for the uses aforesaid, was rotted, de- to get a drink of water, and is almost sure cayed and broken, and by means whereof the the train was still standing on the track by the said Connie McCormick, the wife of the said depot. The time was about 5 o'clock in the M. L. McCormick, who was then and there afternoon and during daylight. That the on the date aforesaid, in said waiting room said plaintiff approached the water cooler ir company with a friend whom she, the said where there was already a hole in the floorConnie McCormick, had come to assist in ing; that plaintiff is a little nearsighted for boarding one of the trains of one of the said seeing or doing anything like that. That the defendants, and who was about to become a plaintiff stepped in the hole and injured herpassenger of one of the said defendants, then self. That the hole was big enough for her and there necessarily and unavoidably broke to get her foot in it; that she broke part of through the said rotted, decayed and broken the floor on the right side. That it was about floor in said room of said passenger depot, 5 o'clock in the afternoon and getting a litand without fault on her part, and thereby | tle dark; that it was a cloudy afternoon and did fall with great force and violence to the the waiting room was crowded with people. floor, striking against a projection, and there That the plaintiff did not look down at the by was injured." A single, separate plea of floor while walking to the water cooler, but not guilty was filed by each one of the four if she had she would have seen the hole in defendant railroad companies. The follow- the floor before she stepped into it. ing demurrer to the evidence was overruled: "Comes now the defendants in the above entitled cause and demur to the evidence herein introduced by the plaintiffs and say that the plaintiffs ought not to have judgment of the defendants herein on said testimony, and the said defendants, for the purposes of this demurrer, admit as true all the testimony herein introduced, with all reasonable deduction to be made therefrom, and the defendants pray judgment of the plaintiffs hereon. "Matters of Law to be Argued. "(1) The testimony shows the plaintiff, Mrs. McCormick, to have been guilty of contributory negligence. "(2) The testimony shows the said plaintiff at the time and place of her injury to have been a mere licensee, towards whom the defendants owed no duty of ordinary and reasonable care, but only the duty to refrain from willfully injuring her. "(3) The testimony does not show any sufficient connection between these defendants, or either of them, and the place where the plaintiff was injured, as to fix responsibility upon the said defendants, or either of them, for the lack of repair or condition of the floor at the point where the said plaintiff was injured. "(4) There is a fatal variance between the allegations in the declaration and the proof as to the time of the alleged accident. "Matters of fact with all reasonable deductions therefrom admitted as true, applicable to the propositions of law raised herein: "That the plaintiff, Mrs. McCormick, on September 15, 1908, went down to the Union Depot with friends to see and assist said friends off on the train of the Florida Railway Company, one of the defendants herein, said friends being two ladies and one man, and being quite a number of bundles with them, and one of the ladies had a child. That upon arriving at the depot her friends immediately boarded the train at the Union "That the defendants A. C. L. R. R. Co.. S. A. L. Ry. Co., L. O. P. & G. Ry. Co., and Fla. Ry. Co. each have tracks leading past the depot where plaintiff was injured. "That they stop at this point for passengers, and that the defendants A. C. L. R. R. Co., S. A. L. Ry. Co. and Fla. Ry. Co., in the building where plaintiff was injured, known as the 'Union Depot,' sell tickets for passage on their respective trains." Only the first two grounds of the demurrer to the evidence are argued here. By this demurrer to the evidence, the defendant railroad companies admitted the truth of the testimony as stated in the demurrer, and also such conclusions of fact as may be fairly drawn from the testimony. Forced or violent inferences from the testimony are not admitted by the demurrer, but the testimony is to be taken most strongly against the demurrants. Fee v. Florida Sugar Manufg. Co., 36 Fla. 612, 18 South. 853. Only the evidence as stated in the demurrer to the evidence can be considered in passing upon the demurrer. Guided by these rules, it is apparent that the liability of the defendants is shown by their use of the depot, by the condition of the floor, and by the circumstances under which the plaintiff was in the waiting room and was injured, as stated in the demurrer to the evidence. The statement in the evidence "that the plaintiff did not look down at the floor while walking to the water cooler, but if she had, she would have seen the hole in the floor before she stepped into it," when considered with the statements that it was "getting a little dark; that it was a cloudy afternoon and the waiting room was crowded with people," and applying the rule that in a demurrer to evidence, the testimony is to be taken most strongly against the demurrants, it is not apparent from the demurrer to the evidence that the plaintiff was guilty of contributory negligence. An investigation of the facts in dispute, and the reconciliation of be had in a demurrer to evidence, but are for the jury upon a consideration of all the evidence adduced at the trial. Mugge v. Jackson, 50 Fla. 235, 39 South. 157. The statement in the testimony incorporated in the demurrer to the evidence that the plaintiff "went down to the Union Depot with friends to see and assist said friends off on the train of the Florida Railway Company, one of the defendants herein, said friends being two ladies and one man, and being quite a number of bundles with them, and one of the ladies had a child," is sufficient on the demurrer to indicate that the plaintiff was properly in the waiting room of the defendant companies. The law imposed upon the defendants the duty to have the floor of its waiting room in a reasonably safe condition, and a liability for nonperformance of this duty where injury proximately results, and the plaintiff does not contribute proximately to the injury. 26 Am. & Eng. Enc. Law (2d Ed.) 508. The demurrer to the evidence was properly overruled. The case could then be submitted to the jury. Section 1446, Gen. St. 1906. Under the title of "An act defining the liabilities of railroad companies in certain cases," chapter 4071, Acts of 1891, contains five sections, the first two of which are brought forward in the General Statutes of 1906, as follows: "3148. Liability of Railroad Company.-A railroad company shall be liable for any damage done to persons, stock or other property, by the running of locomotives, or cars, or other machinery of such company, or for damage done by any person in the employ and service of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company. "3149. When Recovery of Damages Forbidden. No person shall recover damages from a railroad company for injury to himself or his property, where the same is done by his consent, or is caused by his own negligence. If the complainant and the agents of the company are both in fault, the former may recover, but the damages shall be diminished or increased by the jury in proportion to the amount of default attributable to him." The title under which these sections were enacted is restrictive, and the terms of the sections are specific and narrow in their scope. No added effect is given the sections by being subsequently incorporated in the General Statutes of 1906. The act applies only to railroad companies and the constitutionality of the third section, now section 3150, Gen. St. 1906, as a discriminating regulation has been sustained upon the theory that the business of operating railroads differs from other employments in the particular dangers incurred, conditions peculiar to it. Florida East Coast R. Co. v. Lassiter, 58 Fla. 234, 50 South. 428. It is competent for the Legislature, when acting within constitutional limitations, to change the common-law liabilities of railroad companies for damage done to its employés and others. See Seaboard Air Line Ry. v. Simon, 56 Fla. 545, 47 South. 1001. 20 L. R. A. (N. S.) 126; Stearns & Culver Lumber Co. v. Fowler, 58 Fla. 362, 50 South. 680. The subject regulated by the statute is expressly limited to damage done by the running of the locomotives, or cars or other machinery of a railroad company and to damage done by any person in the employment and service of such company. All the sections originally enacted together are to be considered as one act regulating a single restricted subject-matter. The provision in section 2 of the original act, now section 3149 of the General Statutes of 1906, allowing a plaintiff to recover damages from a railroad company where both the plaintiff and the defendant are at fault, is to be construed with the other sections and is limited to damage done by the running of locomotives, cars, or other machinery, or by any person in the employ and service of a railroad company. The injury in this case was not caused by the running of locomotives, cars, or other machinery or by any person in the employ and service of the defendants. The duty to keep the floor of the waiting room in a reasonably safe condition for the purposes of its use devolves upon the companies, but it does not appear that the "damage" complained of was "done by any person in the employ or service of" the defendant companies. In its charges to the jury the trial court did not apply the statutory provision as to the presumption of negligence on the part of the railroad companies arising out of the injury, apparently because the injury was not caused by the running of locomotives, cars, or other machinery, or by any person in the employ and service of the companies; but the court did apply the statutory provision that the plaintiff may recover if both were at fault. This was error because the regulation in each instance is designed to apply to the same subject-matter, viz., damage done by the running of locomotives, cars, or other machinery of a railroad company, or by persons in the employ and service of a railroad company. Where contributory negligence is a defense to an action in tort, and does not merely reduce the damages, the contributory negligence should be pleaded, and proven by the defendant, unless it appears from the allegations or proofs of the plaintiff. In this case the only plea was the general issue of not guilty which did not put in issue any matters of inducement contained in the declaration utory negligence. Louisville & Nashville R. R. Co. v. Ynietra, 21 Fla. 700; Jacksonville Electric Co. v. Sloan, 52 Fla. 257, text 288, 42 South. 516; Atlantic Coast Line Ry. Co. v. Crosby, 53 Fla. 400, 43 South. 318; Atlantic Coast Line Ry. Co. v. Beazley, 54 Fla. 311, 45 South. 761; Moore v. Lanier, 52 Fla. 353, 42 South. 462; Sissel v. St. Louis & S. F. R. Co., 214 Mo. 515, 113 S. W. 1083, 15 Am. & Eng. Ann. Cas. 429, and notes; Atlantic Coast Line Ry. v. Ryland, 50 Fla. 190, 40 South. 24; Ryland v. Atlantic Coast Line Ry. Co., 57 Fla. 143, 49 South. 745; 29 Cyc. 580; 5 Ency. Pl. & Pr. 10. Whether contributory negligence appears by direct testimony, or by fair inference from the evidence of the plaintiff, is a question for the jury to determine under proper instructions from the court, as a conclusion of contributory negligence does not indisputably arise from the evidence offered by the plaintiff so as to become a question of law. See Louisville & Nashville R. R. Co. v. Ynietra, 21 Fla. 700; Florida Cent. & P. R. Co. v. Mooney, 40 Fla. 17, text 32, 24 South. 148. As the existence of the hole in the floor is not controverted, the apparent negligence of the defendants follows, and while it is error to assume in charges facts that are disputed or not conceded, it is not error to assume the existence of a fact shown by uncontroverted testimony. In the charges given the assumption that the hole was in the floor is not on this record error. No question of reckless or willful negligence arises in this case. Florida South. Ry. Co. v. Hirst, 30 Fla. 1, 11 South. 506, 16 L. R. A. 631, 32 Am. St. Rep. 17. In giving charges applying the statutory rule as to comparative negligence and in refusing requested charges that the plaintiff cannot recover if she is guilty of contributory negligence, the court committed errors for which the judgment is reversed and the cause remanded. of the lease, must be read and construed together as one contract. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 104; Dec. Dig. § 40.*] PUBLIC 2. CONTRACTS (8 108*) - VALIDITY POLICY-LEASE OF BED OF STREAM AND RIPARIAN RIGHTS. A contract whereby one party leases to another the shore or space between high and low water mark, a part of the bed of a navigable stream, the title to which is in the state in trust for the public, and the riparian rights which are concurrent with the rights of other inhabitants of the state, and must be exercised subject to the rights of others, is void, as being illegal and contrary to public policy. [Ed. Note. For other cases, see Contracts, Cent. Dig. § 498; Dec. Dig. § 108.*] 3. CONTRACTS (§ 138*)—ILLEGALITY-EFFECT. Courts will take notice of their own motion of illegal contracts which come before them for adjudication, and will leave the parties where they have placed themselves. [Ed. Note.-For other cases, see Contracts, Cent. Dig. § 681; Dec. Dig. § 138.*] PARKHILL, J. On the 22d day of April, ant in error entered into two agreements. 1907, the plaintiff in error and the defendThe one was an indenture of lease under seal, whereby the Escambia Land & Manufacturing Company did let and rent to the Ferry SHACKLEFORD and COCKRELL, JJ., Pass Inspectors' & Shippers' Association for concur. a period of five years from the 12th day of April, 1907, "the use of twenty (20) feet of TAYLOR, HOCKER, and PARKHILL, the following portions of the river front of JJ., concur in the opinion. (59 Fla. 239) ESCAMBIA LAND & MFG. CO. v. FERRY (Supreme Court of Florida, Division B. April ber of each year. 19, 1910. Headnotes Filed June 25, 1910.) (Syllabus by the Court.) 1. LANDLORD AND TENANT (§ 40*)-SEPARATE INSTRUMENTS-INSTRUCTIONS. Two separate instruments under seal, executed by the parties at the same time, one an indenture of lease, the other in the nature of a defeasance which defeats the force or operation certain lands upon the Escambia river in said county of Escambia, and in township one (1), north, range thirty (30) west, to wit:" Then follows a more particular description of the premises, for the yearly rental of $550 per year, payable semiannually in advance on the 1st day of May and the 1st day of NovemIt was further provided: "The term 'River Front,' as used in this instrument, means, and shall be construed to include, a strip of land twenty (20) feet wide and extending back from the high-water mark, as well as all the land below highwater mark, and all the riparian rights incident to the ownership of said land the wa |